July 05, 2011

Prosecution, Defense Gear Up For Clemens Perjury Trial

The Washington federal trial judge presiding over the Roger Clemens prosecution said today in court he may restrict the testimony of three former baseball players regarding their claims a key government witness injected them with performance enhancing drugs.

Judge Reggie Walton of U.S. District Court for the District of Columbia said the testimony of the former players, including Andy Pettitte, could be unfair to Clemens, who is charged with lying about his use of drugs during his Major League Baseball career.

Clemens was in court this morning in Washington for a motions hearing as the prosecution and defense lawyers fought over the scope of the government’s case. The heart of the defense is the contention that Clemens’ former trainer, Brian McNamee, is lying about injecting Clemens with drugs.

Prosecutors said the testimony from Pettitte and other players about their interaction with McNamee is central to the argument that Clemens is lying when he claimed he did not know the substance McNamee injected into him was a banned drug.

An assistant U.S. attorney, Steven Durham, said the testimony from the players corroborates statements from McNamee, the government's chief witness.

Walton, however, expressed concern that jurors could unfairly believe that just because other players thought they were receiving a performance enhancing drug, Clemens had the same knowledge, too. Walton said there’s a “significant potential” such testimony would unduly prejudice Clemens.

Another issue that came up today centered on a defense request to present to jurors the audio of a deposition Clemens gave to congressional investigators before his testimony in February 2008.

The government has been unable to get a copy of the audio recording from the House of Representatives. Durham said the House considers the audio “proprietary.” Prosecutors acquired a transcript.

Russell Hardin Jr., Clemens’ lead defense attorney, said he wants jurors to hear Clemens’ voice, his tone, in answering questions during the deposition. Hardin called access to the audio a “lurking” due process issue. The inability to get a copy, Walton said, could present an appellate issue and delay the start of the trial.

Walton does not use a jury questionnaire. He said today he will give the lawyers ample time to question prospective jurors over the next several days. Jury selection was scheduled to begin Wednesday.